Federal Circuit Pick to Face High Court Scrutiny

(CN) - A woman can go to the Supreme Court to revive her employment discrimination suit against the U.S. Department of Labor.

Carolyn Kloeckner allegedly endured a hostile work environment and discrimination on the basis of her age and sex while employed as a senior investigator for the St. Louis office of the Labor Department's Employee Benefits Security Administration. In June 2005, she filed an equal employment opportunity complaint and stopped going to work, leading the department to fire her a year later.

When the Labor Department secretary rejected Kloeckner's complaint in 2007, she took her appeal to the Merit Systems Protection Board (MSPB).

But Kloeckner's case was complicated by the fact that she had initially tried to challenge her removal directly with the MSPB in 2006. Since Kloeckner was also pursuing the equal opportunity complaint, however, she dismissed the MSPB proceedings without prejudice to streamline discovery costs.

When confronted with Kloeckner's claims a second time in 2007, the MSPB rejected her appeal as untimely because there was a 10-month deadline to refile in the original order to dismiss without prejudice.

Kloeckner then filed suit against the Labor Department secretary in the U.S. District Court for the District of Columbia, but that court transferred the case to the Eastern District of Missouri. A judge there ultimately found that Kloeckner should have appealed the board's decision to the Federal Circuit, and the 8th Circuit affirmed in May.

"Most petitions for review of final MSPB decisions must be filed in the Federal Circuit, whose jurisdiction is exclusive," Judge James Loken wrote for a three-judge panel. "However, actions seeking review in '[c]ases of discrimination' are filed in an appropriate district court, as provided in federal anti-discrimination statutes."

"Because in this case the MSPB did not reach the merits of Kloeckner's discrimination claims in dismissing her mixed case appeal as untimely, the District Court properly ruled that the Federal Circuit had exclusive jurisdiction to review the MSPB's dismissal," he concluded.

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